MERIAL INC, et al v. CEVA SANTE ANIMALE SA, et al
ORDER. Ceva France's 105 Motion to Dismiss Complaint for insufficient service of process shall be granted unless Plaintiffs properly effect service on Ceva France within 60 days of today's Order. Ordered by US DISTRICT JUDGE CLAY D LAND on 01/26/2016. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MERIAL INC. and MERIAL SAS,
CEVA SANTÉ ANIMALE, S.A.,
HORIZON VALLEY GENERICS, INC.,
TRUE SCIENCE HOLDINGS, LLC, and *
CASE NO. 3:15-CV-40 (CDL)
O R D E R
Defendant Ceva Santé Animale S.A. (“Ceva France”) seeks to
dismiss Plaintiffs’ complaint based on insufficient service of
The resolution of this motion ultimately requires the
Court to decide whether the Convention on the Service Abroad of
Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (“Hague
against Ceva France, a French company, by mail.
the Hague Convention does not authorize service by mail under
the circumstances presented here and that Plaintiffs have not
otherwise properly served Ceva France, the Court orders that if
Plaintiffs do not properly serve Ceva France within 60 days of
today’s Order, Ceva France’s motion to dismiss shall be granted.
served, the Court first looks to Rule 4 of the Federal Rules of
With one exception
that is not applicable
here, a foreign company must be served in any manner that an
individual in a foreign country may be served under the Federal
Rules of Civil Procedure.
Fed. R. Civ. P. 4(h)(2).
prescribes the method for serving a foreign individual and thus
also for serving a foreign company such as Ceva France.
France may be served:
(1) by any internationally agreed means of service
that is reasonably calculated to give notice, such as
those authorized by the Hague Convention on the
(2) if there is no internationally agreed means, or if
an international agreement allows but does not specify
other means, by a method that is reasonably calculated
to give notice:
(A) as prescribed by the foreign country’s law
for service in that country in an action in its
courts of general jurisdiction;
(B) as the foreign authority directs in response
to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country’s
* * *
(ii) using any form of mail that the clerk
addresses and sends to the individual and
that requires a signed receipt; or
(3) by other means not prohibited
agreement, as the court orders.
Fed. R. Civ. P. 4(f).
In this case, the United States and France are signatories
to the Hague Convention.
Therefore, the appropriate means for
serving the complaint in this action on Ceva France are those
that are set out in the Hague Convention.
(“[C]ompliance with the Convention is mandatory in all cases to
which it applies.”).1
Plaintiffs contend that they properly served Ceva France
pursuant to the Hague Convention as follows:
Plaintiffs hired a
contends is a member of Ceva France’s Executive Committee, with
a copy of the summons, amended complaint, and exhibits at Ceva
Since the Hague Convention provides an internationally agreed means
of service in this case and does specify various means for
accomplishing service, it is doubtful that subsection (2) of Federal
Rule of Civil Procedure 4(f) applies here; subsection (2) applies “if
there is no internationally agreed means, or if an international
agreement allows but does not specify other means.” Fed. R. Civ. P.
Even if Rule 4(f)(2) did apply, Plaintiffs have not
established that they complied with its requirements.
They have not
demonstrated that service by mail is authorized under French law in
France’s courts of general jurisdiction. They did not have the Clerk
of Court send their summons and complaint by mail.
They did so
without involvement of the Clerk.
And they did not obtain a court
order. Thus, even if subsection (2) is available notwithstanding the
application of the Hague Convention, Plaintiffs have not complied with
it, and the sole question, therefore, is whether Plaintiffs properly
served Ceva France pursuant to the provisions of the Hague Convention.
Plaintiffs argue that such service complies with Article 10(c)
of the Hague Convention.
Article 10(c) provides that service
Convention art. 10(c).
This provision has been interpreted to
mean that service must be made through an authorized
Perfumer’s Workshop, Ltd. v. Roure Bertrand du Pont, Inc., 737
F. Supp. 785, 789 (S.D.N.Y. 1990).
a private process server.
Instead, Plaintiffs employed
And Plaintiffs did not point the
considered a “judicial officer, official, or other competent
person of” France.
Hague Convention art. 10(c).
reason, the Court cannot find that service on Balmes satisfies
Merial next delivered via certified mail two copies of the
summons, amended complaint, and exhibits to Ceva France’s CEO,
Marc Prikazsky, at Ceva France’s principal place of business in
Ceva France does not seriously dispute that
it received the documents that Merial mailed to it and that Ceva
contends that service by certified mail is not authorized under
Article 10(a) of the Hague Convention.
Article 10(a) states: “Provided the State of destination
does not object, the present Convention shall not interfere with
. . .
channels, directly to persons abroad . . . .”
It is undisputed that France does not object to
Hague Conference on Private International Law,
(last visited Jan. 25, 2016).
The question is whether Article
10(a) authorizes service of a complaint in a legal action by
The answer to this question depends on whether the word
“send” means “serve.”
In the context of the Hague Convention
and Rule 4 of the Federal Rules of Civil Procedure, to “serve”
litigation in a manner that is designed to provide reasonable
notice to the other party and that is specifically authorized by
law to initiate a legal action.
To “send” a judicial document
“Send” simply means the transmission of something to someone.
regarding how a party in litigation is to be notified of, or
provided with, judicial documents.
Of course, a litigant could
“serve” an opposing party under the law by “sending” the party
simply “sending” someone documents in a certain manner does not
necessarily mean that the person has been “served” under the
And even if the law allows judicial documents to be “sent”
in a certain manner, that does not mean that the law permits
judicial documents to be “served” in that same manner.
particularly as it relates to the initiation of a legal action,
distinguishing “serve” from “send” as used in Article 10(a).
the Fifth Circuit observed, the Court must “rely on the canons
of statutory interpretation rather than the fickle presumption
that the drafters’ use of the word ‘send’ was a mere oversight.”
Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 384 (5th
Cir. 2002). “‘Absent a clearly expressed legislative intention
regarded as conclusive.’”
Id. (quoting Consumer Prod. Safety
Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).
Fifth Circuit held that Article 10(a) does not authorize service
by mail, explaining that “because the drafters purposely elected
Convention, while confining use of the word ‘send’ to article
10(a), [the court] will not presume that the drafters intended
to give the same meaning to ‘send’ that they intended to give to
Id.; see also Bankston v. Toyota Motor Corp., 889
F.2d 172, 174 (8th Cir. 1989) (“We conclude that sending a copy
of a summons and complaint by registered mail to a defendant in
permitted by the Hague Convention.”).
The Court recognizes that a circuit split exists and that
other courts have ruled that Article 10(a) authorizes service by
E.g., Brockmeyer v. May, 383 F.3d 798, 808 (9th Cir.
process by international mail” but that “any service by mail”
must be performed in accordance with the requirements of Rule
4(f)”); Ackermann v. Levine, 788 F.2d 830, 839-40 (2d Cir. 1986)
(finding that Article 10(a) permits mail service in countries
objected to mail service under Article 10(a)); see also Research
Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 926 (7th Cir. 2002)
(noting that service by certified mail in France is permitted
Article 10(a) permits service by mail).
Although the Eleventh Circuit has not addressed the issue,
several district courts from this circuit have also found that
Article 10(a) allows service by mail.
See Tracfone Wireless,
Inc. v. Hernandez, No. 15-23032-CIV, 2015 WL 5165718, at *3
(S.D. Fla. Sept. 2, 2015) (“[P]rovided the destination country
does not object, service to individuals abroad can be made via
postal channel (such as FedEx) under Fed. R. Civ. P. 4(f)(1).”);
TracFone Wireless, Inc. v. Unlimited PCS, Inc., 279 F.R.D. 626,
630 (S.D. Fla. 2012) (highlighting a U.S. Department of State
deputy legal adviser’s criticism of Bankston’s holding that the
registered mail); Schiffer v. Mazda Motor Corp., 192 F.R.D. 335,
337-38 (N.D. Ga. 2000) (collecting cases and adopting “the view
that Article 10 does permit service of process by mail”);
Geopolymer Sinkhole Specialist, Inc. v. Uretek Worldwide Oy, No.
8:15-CV-1690-T-36JSS, 2015 WL 4757937, at *3-4 (M.D. Fla. Aug.
‘send’ in Article 10(a) is to be understood as meaning ‘service’
through postal channels”).
With all due respect to these other courts, this Court
straightforward exercise of statutory interpretation.
how many State Department officials may say that “send” means
“serve,” that does not make it so.
The signatories of the Hague
Convention knew what the word “serve” meant in the context of
serving legal documents.
They purposefully chose not to use
that word in Article 10(a).
It is not the proper place for a
single judge to insert that word in the place of the word the
drafters actually chose just because the judge speculates that
legitimate exercise of statutory interpretation but would create
Accordingly, the Court finds that Plaintiffs
did not properly serve Ceva France when they attempted to do so
through registered mail.
Plaintiffs contend that even if they did not effect service
France by other means.
Plaintiffs argue that they properly
served Ceva France by personally delivering service of process
to Corporation Service Company, the Georgia registered agent for
Ceva Animal Health, LLC, a U.S. subsidiary of Ceva France.
Plaintiffs argue that if “send” does not mean “serve”, then its use
in Article 10(a) is meaningless.
But Article 10(a) simply provides
that nothing in the Hague Convention shall be deemed to interfere with
a party’s ability to send/transmit legal documents by mail if the
signatory country does not object to this method of transmitting legal
documents. Thus, it clarifies that the transmission of documents that
do not require legal “service” can be accomplished through the mail.
The drafters knew how to describe the transmission of documents for
service purposes and they did so in subsections (b) and (c) of Article
10 when they used the phrase “to effect service” instead of “to send.”
The Court declines to speculate that they did not mean what they said.
registered agent for its subsidiary, but maintains that it is
not a registered agent for Ceva France.
Strait Decl. ¶ 4, ECF
Plaintiffs presented no evidence to the contrary.
Plaintiffs also maintain that they effected service on Ceva
personally serving Craig Wallace, the CEO of Ceva
Animal Health, LLC, with a Summons and Amended complaint at his
home (after attempting to serve him at his office but being told
Director, although Ceva France presented evidence that he is an
officer of Ceva U.S. Holdings, Inc. and Ceva Animal Health LLC
but is not an employee, officer, director, or agent of Ceva
France and is not authorized to accept service on behalf of Ceva
Strait Decl. ¶ 3.
Plaintiffs produced no evidence to
rebut Ceva France’s representations and pointed the Court to no
authority that its attempts at service on Wallace were proper
under Rule 4 of the Federal Rules of Civil Procedure.3
Plaintiffs argue that Wallace’s social networking profile on LinkedIn
established that he was an officer of Ceva France because it stated
that he was “CEO and North America Pacific Zone Director” at “CEVA
SANTE ANIMALE.” Pls.’ Resp. to Defs.’ Mot. to Dismiss Ex. 12 at 16,
LinkedIn Profiles, ECF No. 38-13 at 17.
But Wallace’s LinkedIn
profile does not establish that Wallace was an officer of the legal
entity Ceva Santé Animale S.A. The profile said that Wallace was CEO
(and North America Zone Director) of CEVA SANTE ANIMALE, but there is
no evidence that Wallace was ever CEO of Ceva Santé Animale S.A.
Rather, the evidence is that Marc Prikazsky holds that position.
Therefore, the LinkedIn profile does not establish that Wallace is an
officer of Ceva Santé Animale S.A. or that he was authorized to accept
service on behalf of Ceva France.
insufficient service of process (ECF No. 105) shall be granted,
unless Plaintiffs properly effect service on Ceva France within
60 days of today’s Order.
IT IS SO ORDERED, this 26th day of January, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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